Rogers v. Rogers , 1984 S.D. LEXIS 335 ( 1984 )

WOLLMAN, Justice.

This is an appeal from the trial court’s order denying appellant’s motion to vacate a judgment and decree of divorce. We reverse and remand.

Appellant and appellee were married in 1949 and had seven children, only one of whom was a minor when this divorce action was commenced in 1980. On January 29, 1982, the parties entered into a settlement agreement that had been negotiated on their behalf by their attorneys. Paragraph VIII of the agreement provided in part:

The husband agrees to execute and keep in force at all times a valid Last Will and Testament, the terms being that if the husband predeceases any of the children of the marriage, any and all farm land owned at the time of his death would be transferred to his respective surviving children.

On February 3, 1982, the trial court entered a judgment and decree of divorce, which incorporated verbatim that portion of Paragraph VIII of the settlement agreement set forth above.

On February 9, 1982, appellee signed a document entitled “Contract to Execute Will,” which states in part:

That the parties intend by this agreement to provide for the execution of a Will in which all the farm land owned by the husband or in which he may have an interest at the time of his death, will be bequeathed and devised to the children of the parties.

Neither this document nor any other instrument appearing in the record prevents ap-pellee from disposing of any of the parties’ farmland during appellee’s lifetime.

On August 16, 1982, appellant signed an affidavit in support of a motion to vacate and set aside the judgment and decree of divorce in which she alleges that she had advised her trial attorney (who is not her attorney on appeal) that she would accept a reduced settlement on the condition that all of the real estate would pass to the parties’ four sons if appellee died or discontinued the farm operation. The affidavit alleges that appellant had more than once been assured by her trial attorney that appellee would not be able to deprive their children of the farm by disposing of it and that there was no question that the farmland would go to the boys. With the further assurance that “the papers” were being prepared, appellant executed the property settlement agreement.

One of appellant’s sons, who was present during her discussions with her attorney and when she executed the agreement, filed an affidavit in support of appellant’s motion to vacate the judgment, stating that he had understood that his mother wanted “the land to be vested in such a manner that upon his father’s death, it would pass to the boys.”

Pursuant to appellant’s motion, the trial court issued an order to show cause on September 13, 1982. The matter was submitted to the trial court on affidavits and a transcript of the divorce trial, following which the trial court entered the order appealed from.

Appellant argues that because she was surprised when she learned that her attorney had done nothing to prevent her husband from disposing of the farm, she should be relieved from the divorce judgment pursuant to SDCL 15-6-60(b).^* We agree.

At the outset, we join with those courts which have held that rules authorizing relief from final judgments on grounds such as fraud or mistake are applicable to awards of support and property settlements incorporated in divorce decrees. See Larson v. Larson, 661 P.2d 626 (Alaska 1983), and cases cited at n. 3, p. 628.

“A motion for relief based on SDCL 15-6-60(b) is addressed to the sound discretion of the trial court. Absent an abuse of that discretion, the order denying such a motion cannot be disturbed on appeal, [citations omitted]” Overvaag v. City of Dell Rapids, 319 N.W.2d 171, 173 (S.D.1982). The trial court’s discretion should be exercised liberally in accord with legal and equitable principles so as to promote the ends of justice. See City of Lemmon v. U.S. Fidelity and Guaranty, 293 N.W.2d 433 (S.D.1980); Badger Northland, Inc. v. Van Der Boom, 235 N.W.2d 903 (S.D.1975); Ingalls v. Arbeiter, 72 S.D. 488, 36 N.W.2d 669 (1949); Jones v. Johnson, 54 S.D. 149, 222 N.W. 688 (1928).

The terms, “mistake,” “inadvertence,” “surprise,” and “excusable neglect” as used in SDCL 15-6-60(b)(l) have no fixed meaning; the question must be determined from the facts and circumstances presented by each case. See Badger Northland, Inc. v. Van Der Boom, supra.

Inasmuch as the motion to vacate was submitted on the basis of affidavits, our review of the evidence “is unhampered by the rule that a trial judge who has observed the demeanor of the witnesses is in a better position to intelligently weigh the evidence than the appellate court.” Davis v. Interstate Motor Carriers Agency, 85 S.D. 101, 105, 178 N.W.2d 204, 206 (1970). See also Gilliland v. Courtesy Motors, Inc., 89 S.D. 273, 232 N.W.2d 828 (1975).

On the basis of the affidavits, we are satisfied that appellant intended to prevent appellee from depriving the children of the farm by precluding him from disposing of the farm during his lifetime. Appellant’s statements at the divorce trial that she understood the property settlement agreement are not conclusive with respect to the full extent of that understanding. There was no evidence that appellant was sophisticated in property and divorce matters. The agreement was not so clear, unambiguous, and understandable by a layman that appellant should be held to have fully understood the full import of the critical language therein. Additionally, appellant’s understanding of the agreement may not even be relevant in view of the assurances by her attorney that other “papers” were also being prepared. The other “papers” that appellant expected would carry out the settlement agreement turned out to be appellee’s February 9, 1982, “Contract to Execute Will,” which came into existence only after the judgment and decree was entered. Only then, when all the documentation was apparently complete, could appellant have had an opportunity to examine it and really understand, to her surprise, that the result was not what her attorney had assured her it would be.

We cannot agree with appellee that any mistake or negligence of appellant’s trial attorney in failing to accomplish the intended result in this divorce should be imputed to appellant and should bar her from relief from the judgment. “[T]he mistake or negligence of an attorney will not be imputed to the client as a bar to relief where (1) the act or omission of the attorney is excusable or (2) the defendant himself [here appellant] is free from neglect in the matter, (citations omitted)” Ackerman v. Burgard, 79 S.D. 119, 124, 109 N.W.2d 10, 12 (1961). In this case, the negligence of appellant’s attorney will not be imputed to her because she is free from any unexcusable neglect. As we have indicated, the settlement agreement was not readily understandable by a layman. Accordingly, because appellant is not chargeable with neglect in her own right, she is not barred from claiming any surprise.

Appellee contends that appellant is estopped from seeking relief from the divorce judgment. A party to a divorce who has accepted the benefits of the judgment may in a given case be held to be estopped from challenging the validity of the decree. This is especially true in those cases in which the party who is attempting to attack the decree has remarried in reliance upon the decree. See Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980); Brockel v. Brockel, 80 S.D. 547, 128 N.W.2d 558 (1964). Here, however, the only benefits flowing to appellant have been in the nature of money and property. Appellant will not be entitled to additional money or property as a result of any modification of the decree in accordance with her prayer for relief. Accordingly, her reliance upon the decree has not been of such a nature as to render it inequitable or contrary to public policy to permit the decree to be modified to reflect the true intentions of the parties.

This is not to say, of course, that upon remand the trial court may not impose upon appellant such terms as it determines to be just as a condition precedent to modifying the judgment. As set forth above, SDCL 15-6-60(b) provides that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment .... ” This court apparently has not heretofore addressed the application of 15-6-60(b) in the context of a motion for relief from a judgment entered in an action for divorce. Cf. Ormsby v. Conrad, 4 S.D. 599, 57 N.W. 778 (1894). We find persuasive that which the Supreme Court of Tennessee wrote with respect to the application of its state’s counterpart to SDCL 15-6-60(b):

Finally, we consider the action of the Court of Appeals in remanding the case to the trial court with directions that the wife be permitted to amend her complaint to pray for alimony, that the defendant be permitted to respond thereto and that a hearing be conducted upon the merits of that issue.

Rule 60.02, T.R.C.P., provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ...” [Emphasis in original.]

The underlined language vests in the court a broad discretion with respect to the imposition of conditions which must be met by one who seeks relief from a final judgment under Rule 60.02. It is well recognized that a court in granting a motion to open or vacate a judgment may, within reasonable limits, impose such terms as it deems just and proper to prescribe....

We consider it only just and reasonable that as a condition to awarding relief to the defendant under Rule 60.02 the issue of alimony should be reopened in the trial court as provided in the decree of the Court of Appeals.

Qualls v. Qualls, 589 S.W.2d 906, 910 (Tenn.1979) (citations and footnote omitted).

Accordingly, upon remand, the trial court should consider what terms, if any, should be imposed upon appellant as a condition to awarding the relief she requests.

Appellant’s request for attorney’s fees on appeal is denied.

The order denying the motion to vacate the judgment is reversed, and the case is remanded to the circuit court for further proceedings.

FOSHEIM, C.J., and DUNN and MORGAN, JJ., concur. HENDERSON, J., dissents.

* SDCL 15-6-60(b) provides in part: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; ..."